Having first practiced drawing for a while…take pains and pleasure in constantly copying the best things which you can find done by the hand of great masters…Take care to select the best one every time, and the one who has the greatest reputation…it will be against nature if you do not get some grasp of his style and of his spirit…your intelligence would have to be crude indeed for you not to get some nourishment from it. If nature has granted you any imagination at all, you will eventually acquire a style individual to yourself, and it cannot help being good; because our hand and your mind, being accustomed to gather flowers, would ill know how to pluck thorns.
-Cennino d'Andrea Cennini, Il Libro dell' Arte, 15th Century
The letter to the editor in last week's paper, from H Margaret, calling on people to be concerned about the "orphan works" legislation [
] currently in Congress is far from a lonely cry. I've received several e-mails from concerned artists and, nationwide, there are dozens of organizations actively campaigning against the legislation.
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In the House of Representatives, it's known as HR 5889, The Orphan Works Act of 2008 and in the Senate, it's S 2913, The Shawn Bentley Orphan Works Act of 2008. Why are artists rallying against it? Because the bill would effectively change the nature of copyright and put greater financial and logistical strains on individuals concerned with copyright infringement.
Designed to free up content that is marginally protected by copyright despite being unused and unclaimed-content known as "orphans"-the proposed legislation would reduce the duration that copyrights are sustained and effectively terminate "passive" copyright, the implied rights of authorship given to anyone who creates something, regardless of whether or not they choose to formally register that thing with the US Copyright Office. The alleged intent is to ease the burden on scholars, museums, etc., which, despite diligent searches, are left unable to use certain images and information because the original creator cannot be found. More deeply, the bill stems from proposals originally drafted through a workshop run by Peter Jaszi, a law professor at American University and a specialist in intellectual property with Marxist-leaning sympathies.
The idea that more images and content should be more freely used by more people is at the core of the current proposed legislation, which is one of the reasons that it's so annoying that so many artists are against it. It's true that as the legislation currently exists, there appear to be some avenues through which large corporations might more easily be able to make use of works without honestly offering legitimate compensation. But it's also true that much of the noise coming from opponents of the Orphan Works Act, is ill-informed-the kind of chain letter, lemming fury so readily promulgated in the era of Internet organizing. More disconcerting is that fine artists have been lulled into thinking like commercial artists and apparently now feel that hoarding their work is more important that artistic evolution and cultural dialogue.
Among the common misconceptions is the belief that every sketch, drawing, artwork, photograph, etc., would need to be individually registered with a searchable database in order to receive copyright protection, with a fee paid for each registration. Currently, it's possible to copyright a body of work and whole collections of unpublished works under one registration fee; that would not change. Also, the 2008 proposal differs from a 2006 attempt that was shot down, in that it requires the Copyright Office to establish and maintain "best practices" required to perform a reasonable search for ownership before using an "orphaned" work. Current versions also would require entities and individuals to file a notice that they are using a work under the "orphaned" clause. Two searchable databases would be established to maintain all of this information, and the legislation would not go into effect until the databases exist, projected to be in 2011 or 2013. It is likely that noticing an infringement and taking action in response, will be significantly easier than it is now-contrary to what opponents claim.
But, whether the current tweak proves boon or bust, why are artists concerned with defending a fundamentally broken copyright system that has never placed them in high regard to begin with, and that has always prioritized commoditization over cultural value? Instead of reacting, artists should be proactively using alternative systems that make copyrights more productive, such as Creative Commons, which allows people to delineate scales of use for their works. Using the free Creative Commons licensing (creativecommons.org) an artist can prevent use by corporate advertisers while simultaneously allaying any trepidation on the part of museums and scholars.
The Creative Commons license that pertains to music sampling was written by the band Negativland in conjunction with an open source, public listserv. In other words, the legal license was written with the same open input that artistic production should freely have.
"Part of the bargain of cultural production is that you don't get total control," Mark Hosler of Negativland says. "If you want total control, keep it in your bedroom-that's the only place you can have complete, omnipotent, god-like control of your work. And if you think you deserve that kind of control, I'd say you're not thinking for the good of culture and art, you're just thinking like a corporate lawyer."
If individual artists effectively side with the protectionist, commodity-based efforts of the recording industry and major movie studios, we will all, as Cennini suggests, be plucking thorns for quite some time.
